Ex Parte Brud et al

Board of Patent Appeals and Interferences

Feb 11, 2011

10737101 (B.P.A.I. Feb. 11, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/737,101 12/15/2003 Lynn Brud 20246 5505
23556 7590 02/14/2011
KIMBERLY-CLARK WORLDWIDE, INC.
Tara Pohlkotte
2300 Winchester Rd.
NEENAH, WI 54956
EXAMINER
ZALUKAEVA, TATYANA
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
02/14/2011 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LYNN BRUD, MICHAEL FAULKS, and
EMILY TRAN
____________

Appeal 2009-011707
Application 10/737,101
Technology Center 3700
____________

Before WILLIAM F. PATE, III, MICHAEL W. O’NEILL, and
FRED A. SILVERBERG, Administrative Patent Judges.

O’NEILL, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-011707
Application 10/737,101

2
STATEMENT OF THE CASE
Lynn Brud et al. (Appellants) appeal under 35 U.S.C. § 134 from the
Examiner’s decision rejecting claims 1-4, 6-18, 21, and 43-45 under 35
U.S.C. § 102(b) as anticipated by Rönnberg (WO 98/53785, pub. Dec. 3,
1998), claim 5 under 35 U.S.C. § 103(a) as being unpatentable in view of
Rönnberg and Walker (GB 2 208 263 A, pub. Mar. 22, 1989), and claims 12,
13, 18-20, and 44-45 under 35 U.S.C. § 103(a) as being unpatentable in view
of Rönnberg.2 Claims 22-42 have been withdrawn. We have jurisdiction
under 35 U.S.C. § 6(b). We REVERSE.
The Invention
The claims on appeal relate to an absorbent garment.
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. An absorbent garment, comprising:
a garment shell defining a longitudinal axis, a
transverse axis, a first waist edge generally parallel to
the transverse axis, a first waist region contiguous with
the first waist edge, a second waist edge generally
parallel to the transverse axis, and a second waist region
contiguous with the second waist edge;
a first inner attachment member disposed at the
first waist region, and a second inner attachment
member disposed at the second waist region, each
attachment member having a length dimension
generally parallel to the longitudinal axis; and

2 The rejection of claim 4 under 35 U.S.C. § 112, second paragraph, is not
before us for review pursuant Appellants’ statement acknowledging the
improper antecedent basis for the term “article” and further stating that
“there is not dispute to be resolved by the Board with respect to this claim”
concerning this rejection. App. Br. 4.
Appeal 2009-011707
Application 10/737,101

3
an absorbent assembly adapted for refastenable
attachment to the garment shell, the absorbent assembly
having an inner surface adapted for contact with a
wearer's body, an outer surface opposite the inner
surface, a first end region in facing relationship with the
first waist region of the garment shell, and a second end
region in facing relationship with the second waist
region of the garment shell,
wherein the absorbent assembly comprises a first
fastening component disposed in the first end region,
the first fastening component having a length dimension
generally parallel to the longitudinal axis, and a second
fastening component disposed in the second end region,
the second fastening component having a length
dimension generally parallel to the longitudinal axis,
wherein the first fastening component is adapted for
refastenable engagement to the first inner attachment
member, and the second fastening component is adapted
for refastenable engagement to the second inner
attachment member,
wherein the length dimension of the first inner
attachment member is greater than the length dimension
of the first fastening component and the second
attachment member.

OPINION
The Examiner’s findings and analysis are insufficient to support the
finding that Rönnberg discloses that the length dimension of the first inner
attachment member is greater than the length dimension of the second inner
attachment member as called in claims 1, 43, and 44. The Examiner has
arbitrarily selected in Rönnberg, two portions 8, 9 of material 3 in order to
satisfy the aforementioned claim limitation. Essentially, the Examiner has
found that in Rönnberg, one portion 9 compared to another portion 8, which
are both part of one structure 3, discloses the claim limitation. Consistent
Appeal 2009-011707
Application 10/737,101

4
with the principle that all limitations in a claim must be considered to be
meaningful, it is improper to rely on the same structure in the Rönnberg
reference as being responsive to two different elements (first and second
attachment members) in claims 1, 43, and 44. See, Lantech, Inc. v. Keip
Machine Co., 32 F.3d 542 (Fed. Cir. 1994) (in infringement context, a single
conveyor held to not meet claim element requiring at least two conveyors);
In re Robertson, 169 F.3d 743 (Fed. Cir. 1999)(claim requiring three
separate means not anticipated by structure containing two means where one
of the two means was argued to meet two of the three claimed means).
In view of the foregoing, we are constrained to reverse the Examiner’s
rejections of claims 1-21 and 43-45.

DECISION
We reverse the Examiner’s decision to reject claims 1-4, 6-18, 21, and
43-45 under 35 U.S.C. § 102(b) as anticipated by Rönnberg, claim 5 under
35 U.S.C. § 103(a) as being unpatentable in view of Rönnberg and Walker,
and claims 12, 13, 18-20, and 44-45 as being unpatentable in view of
Rönnberg.

REVERSED
Klh

KIMBERLY-CLARK WORLDWIDE, INC.
TARA POHLKOTTE
2300 WINCHESTER RD.
NEENAH, WI 54956